Freedom of Information Law request
by The New Franklin Register
to Department of Environmental Conservation
for the draft regulations resulting from the GEIS on Oil, Gas and Solution Mining Regulatory Program (1992)

Backstory

While following the developments of gas drilling in Pennsylvania, The New Franklin Register found mention of a review of the PA DEP oil and gas regulatory program. In tracking-down this lead, we found that there had been a similar review of the NYS DEC program by IOGCC and US EPA in 1994 — available at http://strongerinc.org/content/new-york . Also available on their website was a sixteen page history of the program, which revealed that, unlike several states, New York undertook no follow-up review in the intervening 15 years. (Pennsylvania had two follow-up reviews in that time.) After a presentation in 2004 to DEC by STRONGER Inc. (the subsidiary of IOGCC that took over the review process), DEC agreed to a follow-up review in 2005, which was postponed to 2006 and then cancelled (James Erb, consultant to STRONGER Board of Directors, personal communication, 5/6/11). We were referred to Director Field of DMN for an explanation of this cancellation, but received no response.

As a consolation, DEC agreed to self-evaluate how well they had responded to the 37 recommendations of the 1994 review. This Q&A is not available on the STRONGER web site, but we were sent a copy. In addition to whether the IOGCC/EPA recommendations were implemented or not, in some cases DEC provided comments on their efforts. For the primary recommendation:

Recommendation I.1. DMN should establish and adhere to a schedule for completing its rule revisions as soon as possible, and incorporate the relevant recommendations contained throughout this report into the rulemaking. (1990 Guidelines sections 3.1 and 5.1.)

Has this recommendation been implemented? Partially

Comments: Mineral Resources prepared regulations and held hearings in the fall of 1997 to collect public comments. These regulations were not promulgated; however, Mineral Resources has implemented many regulatory changes through other means, including permit conditions and guidance documents.

With this revelation, The New Franklin Register began our attempt to obtain a copy of those draft regulations.

Unlike the GEIS, there is no record on the DEC website of the IOGCC/EPA review, the draft regulations, or the STRONGER questionnaire. This despite that the DEC is still a member of the Interstate Oil and Gas Compact Commission, as is listed on their website http://www.dec.ny.gov/about/805.html , with the Director of DMN, Bradley J. Field, the official voting representative.

FOIL Request for Draft GEIS Regulations

Chronology

6/11 The New Franklin Register e-mailed a FOIL request to Ms. Earl at DEC (Records Access <foil@gw.dec.state.ny.us>) for the draft GEIS regulations.

6/11 Division of Mineral Resources (DMN) notified us that, due to their work completing the revised draft SGEIS, the usual 10 day response would instead be two months.

8/11 Days before the two month deadline, DMN denies request because this document is “an internal draft” and as “inter-agency or intra-agency materials” may be denied.

8/11 Within the 30 day deadline, the NFR sends a register letter to the FOIL Appeals Officer in the Office of General Council, DEC appealing our denial.

9/11 An Associate Counsel in DEC office of General Counsel investigates and explains that DMN claims that they could find no copy of the 1997 draft regs, but they did find a copy of a 2000 edit. Because of the edits, DMN claims that it is “an internal draft”.

9/11 AC finds in the Environmental Notice Bulletin announcement of public workshops held by DMN on the draft regs, thereby confirming that 1997 draft regs were a public document.

9/11 AC is unable to locate even one copy of those draft regs anywhere in New York government system.

10/11 AC rules that DMN must release the 2000 edited version, but may redact the text added in 2000.

11/11 After reading through the document, NFR decides not to make a judicial appeal for an unredacted copy. Redacted text is mostly punctuations, words, and section headings.